A Delaware statutory trust (DST) is a legally recognized trust created under the laws of Delaware for business purposes and can be offered as replacement property for accredited investors seeking to defer capital gains taxes through a 1031 exchange. DSTs are separate legal entities, offering their trustee(s) limited liability.

Accredited investors are defined as individuals who earn an annual income of at least $200,000 and/or have a net worth in excess of $1 million. Entities are accredited investors if the entity’s assets are in excess of $5 million and/or each entity member is an accredited investor as an individual.

The following seven restrictions must be met in order for a DST to quality for a 1031 exchange:

1. The trustee cannot accept contributions from either current or new investors once the offering is closed;

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2. The trustee cannot renegotiate the terms of the existing loans, or borrow any new funds from a third party (unless a loan default occurs as a result of a tenant bankruptcy or insolvency);
3. The trustee cannot use the proceeds from the sale of its real estate to acquire new real estate;
4. The trustee’s expenditures with respect to the property are limited to (a) normal repair and maintenance, (b) minor non-structural improvements and (c) those repairs and improvements required by law;
5. Any reserves or cash held between distribution dates can only be invested in short-term government debt;
6. All cash must be distributed on a current basis (other than necessary reserves);
7. The trustee cannot enter into new leases or renegotiate the current leases unless it is necessitated by a tenant bankruptcy or insolvency and then only according to the terms of the master lease between the investors and the trustee.

Last Updated on June 21, 2017 by Ramin Seddiq